K.R. Jossen v. Rubber Board & Secretary to Government of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR SATURDAY, THE 20TH DAY OF SEPTEMBER 2014/29TH BHADRA, 1936 WA.No. 1635 of 2012 () IN WP(C).16706/2008 -------------------------------------------- WP(C) 16706/2008 of HIGH COURT OF KERALA APPELLANT/PETITIONER: ---------------------------- K.R.JOSSEN (FORMERLY ASSISTANT ENGINEER, CIVIL, RUBBER BOARD KOTTAYAM), PERMANENTLY RESIDING AT KOLLANNUR HOUSE BUILDING NO.III/311, MULANJUR P.O., OTTAPPALAM PALAGHAT, NOW AT FLAT NO. 203, SHANTHI II SAI GARDENS, SEEGEHALLI, WHITEFIELD HOSKOTE ROAD BANGALORE-560067. BY ADVS.SRI.M.SREEKUMAR SRI.K.JAYAKUMAR (SR.) ## RESPONDENTS/RESPONDENTS: ------------------------------------ 1. THE CHAIRMAN RUBBER BOARD, KOTTAYAM-696001. 2. SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF COMMERCE AND INDUSTRY DEPARTMENT OF COMMERCE, NEW DELHI-110001. R1 BY ADV. SRI.V.ABRAHAM MARKOS R1 BY ADV. SRI.MATHEWS K.UTHUPPACHAN R1 BY ADV. SRI.BINU MATHEW R1 BY ADV. SRI.TERRY V.JAMES R1 BY ADV. SRI.B.J.JOHN PRAKASH R1 BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL) BY SRI.JOSEPH KODIENTHARA R2 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-08-2014, THE COURT ON 20.9.2014 DELIVERED THE FOLLOWING: ## **THOTTATHIL B.RADHAKRISHNAN** ## **&** ## **P.B.SURESH KUMAR, JJ.** ## **-----------------------------------------------** ## **W.A.No.1635 of 2012** ## **-----------------------------------------------** ## **Dated 20[th] September, 2014** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** The unsuccessful petitioner in the writ petition is the appellant. He was an Assistant Engineer in the service of the Rubber Board. The appellant was removed from service as per Ext.P4 order, pursuant to a disciplinary proceedings initiated against him. Ext.P5 is the appeal preferred by the appellant before the appellate authority, challenging Ext.P4 order. Ext.P5 appeal was initially rejected by the appellate authority, as per Ext.P6 order. Ext.P6 order was interfered with by this Court as per Ext.P7 judgment and the appellate authority was directed to consider the appeal afresh. Thereupon, Ext.P5 appeal was considered afresh by the appellate authority and Ext.P9 order was issued. Exts.P4 and P9 orders were under challenge in the writ petition. ## 2. The charges levelled against the appellant were 2 W.A.No.1635 of 2012 ## the following : “Shri KR Jossen while functioning as Asst.Engineer (Civil) during the period between 1989 and 1993 at Board's Zonal office, Guwahati, indulged in serious misconduct in as much as he, failed to properly supervise/inspect the civil construction works of the Board carried out by the National Building Construction Corporation (NBCC) at Soruthari, Nagerkatta and Jenkitchakri, permitted M/s NBCC to carry out defective works in all the three stations using substandard materials at the expense of the Board, failed to bring the defective civil works to the notice of the Board and made wrong recommendation/certification of the Running Accounts Bills of NBCC by knowing fully well that the works carried out by NBCC and covered by the said Running Accounts Bills were defective and caused pecuniary loss of Rs.12,65,099.60 to the Board. AND that Shri. KR Jossen while functioning in the aforesaid capacity during 1997 in the Civil Engineering Unit, Kottayam, failed to supervise the fencing work properly at Rajiv Gandhi Institute of Technology (RIT), Vellore and permitted the contractor to carry out substandard casting and fixing of concrete fencing posts. AND that Shri KR Jossen while functioning in the aforesaid capacity has resorted to unauthorised absence much against the provisions of the leave rules and conducted himself in an unbecoming manner by continuing his unauthorised absence from 18.1.98 in defiance of the orders/directions of the Board. AND that Shri KR Jossen while unauthorisedly 3 W.A.No.1635 of 2012 absenting from duty has left India without taking permission/sanction from the Board or informing the Board and unauthorisedly continuing in Saudi Arabia by contracting an employment there in violation of the rules governing his conduct as an employee of the Board.” The enquiry officer, in Ext.P2 report, found that all the charges imputed against the appellant have been established beyond doubt. It was on the basis of Ext.P2 report, Ext.P4 order was passed by the disciplinary authority. 3. The contentions raised by the appellant before the learned single Judge were mainly that he was not afforded an effective opportunity to participate in the enquiry and that a copy of the enquiry report was not furnished to him before entering into a conclusion about the correctness of the findings of the enquiry officer. 4. The learned single Judge, relying on the decision of the Apex Court in **Haryana Financial Corpn. v. Kailash Chandra Ahuja** , [(2008) 9 SCC 31], held that failure to furnish a copy of the report will not result in automatic invalidation of the proceedings against a delinquent employee, 4 W.A.No.1635 of 2012 unless the court is satisfied that prejudice has been caused to him/her and that it is for the delinquent employee to plead and prove the prejudice caused to him. The learned single Judge found that a copy of the enquiry report was furnished to the appellant along with the show cause notice and he submitted a representation highlighting his grievances against the disciplinary proceedings, on 30.7.2001. According to the learned Judge, the appellant was given yet another opportunity of being heard in person thereafter, on 29.10.2011 and he did not avail that opportunity. With regard to the contention that the appellant was not afforded an opportunity to participate in the enquiry, the learned single Judge, on facts, found that the appellant was given sufficient opportunity to appear and contest the matter. The learned single Judge also held that the contentions raised by the appellant have been considered with due application of mind in Ext.P9 order passed by the appellate authority. It is on the basis of the aforesaid findings, the learned single Judge, dismissed the writ petition. 5. We have heard the learned counsel on either side. W.A.No.1635 of 2012 5 6. The learned counsel for the appellant argued that the contention raised by him that the copy of the enquiry report was not served on the appellant before entering into a conclusion as to the correctness of the findings of the enquiry officer, has not been considered by the learned single Judge. He has relied on the decision of the Apex Court in **Managing Director, ECIL, Hyderabad and others v. B.Karunakar and others** [(1993)4 SCC 727], in support of the said contention. He has also, relying on three additional documents produced in the writ appeal as annexures A to C, contended that the factual finding rendered by the learned single Judge that the appellant was given sufficient opportunity to participate in the enquiry, is incorrect. 7. This appeal is preferred, invoking Section 5 of the Kerala High Court Act, challenging the judgment delivered by the learned single Judge in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India. The scope of an appeal preferred against an order passed invoking the jurisdiction of this court under Article 226 of the Constitution of India needs to be mentioned before dealing 6 W.A.No.1635 of 2012 with the contentions raised by the appellant. This court had consistently held that once the discretion is exercised in a matter by the learned single Judge, unless the decision is perverse, the jurisdiction of this Court under Section 5 of the Kerala High Court Act cannot be invoked. [See **Rajalekshmi Motor Service v. Government of Kerala** (1960 KLT 85), **Neelakanta Kartha v. Registrar, Kerala Agricultural University** (1978 KLT 408), **Mayadevi v. Rajan** (1985 KLT 376) and **State of Kerala v. Balakrishnan** (1992(1) KLT 420)]. 8. The impugned judgment indicates that the learned single Judge has meticulously examined the materials on record to arrive at the conclusion that the petitioner was given sufficient opportunity to appear before the enquiry officer and present his case. The relevant discussion of the learned single Judge, contained in paragraph 7 of the judgment reads thus : “It is evident from the enquiry report produced as Ext.P2 (a) that the enquiry officer had informed the petitioner on 22.9.2000 regarding the enquiry to be held on 18.10.2000. But he did not attend the preliminary hearing. He was given a further chance to present and W.A.No.1635 of 2012 7 participate in the enquiry, which was adjourned to 20.11.2000 and a copy of the proceedings was dispatched to him on 23.10.2000. The petitioner requested for supplying additional documents by Fax dated 26.9.2000. It was considered and decided to make available to him in the enquiry on 20.11.2000. A letter was issued on 3.11.2000 informing the delinquent officer about the enquiry which was postponed to 20.11.2000 and he had received the said notice for which there is an acknowledgment. Despite having received the said notice also the delinquent officer did not appear. The proceedings held on 20.11.2000 was also forwarded to the petitioner on 24.11.2000 enabling him to crossexamine the witnesses on 18.12.2000. Still he did not appear but sent a Fax dated 11.12.2000 appointing a Defence Assistant and had requested for time to participate in the enquiry. None appeared on 18.12.2000 and thereafter he was declared ex parte and proceeded with the enquiry. I do not think that from the facts stated above, there was any violation of natural justice in conducting the enquiry as the petitioner was given sufficient opportunity to appear and to contest the matter. If his failure to attend the enquiry had caused any detriment to him and it is on his own volition it cannot be stated as a reason for challenging the enquiry report.” The learned counsel for the appellant attempted to attack the said factual finding rendered by the learned single Judge on the 8 W.A.No.1635 of 2012 basis of three additional documents produced in the writ appeal as Annexures A to C. We are afraid, such a course cannot be adopted at all to challenge the factual findings rendered by the learned single Judge in exercise of the discretionary jurisdiction. If contentions of this nature are entertained based on documents which were in existence and which have not been placed before the learned Judge, there will be no finality at all to the decision making process. Further, the aforesaid documents have been produced in the writ appeal without any application to accept the said documents in evidence, explaining the reasons for its nonproduction before the learned single Judge. Despite the aforesaid, we have examined the said documents. The said documents are produced only to show that the intimation regarding the enquiry scheduled on 18.10.2000 was not sent to the appellant in his correct address. The said documents do not indicate that the appellant did not receive the intimations regarding the enquiry scheduled on 20.11.2000 and on 18.12.2000. The said documents do not also indicate that the appellant did not receive the proceedings of the 9 W.A.No.1635 of 2012 enquiry held on 20.11.2000, as forwarded to him on 24.11.2000. It is not disputed that the appellant did not appear before the enquiry officer on any of the aforesaid dates. In the aforesaid circumstances, there is absolutely no reason to interfere with the finding of the learned single Judge that the appellant was given sufficient opportunity to participate in the enquiry. 9. The contention of the appellant that the copy of the enquiry report was not served on him, before entering into a conclusion as to the correctness of the findings of the enquiry officer has also to fail, for, the appellant has not established the prejudice caused to him, in the disciplinary proceedings, on account of the non-supply of the report of enquiry at the relevant time. After referring to **B.Karunakar's case** (supra), the Apex Court held in **Burdwan Central Coop. Bank Ltd. v. Asim Chatterjee,** [(2012) 2 SCC 641] held that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the report has to be considered in the facts of each case and where the furnishing of the enquiry report would not make any difference to the ultimate outcome 10 W.A.No.1635 of 2012 of the matter, it would be a perversion of justice to allow the employee concerned to resume his duties and get all consequential benefits. The relevant paragraphs of the said judgment read thus : “19. However, there is one aspect of the matter which cannot be ignored. In _B. Karunakar case_[1] despite holding that non-supply of a copy of the report of the enquiry officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was observed that whether in fact, prejudice has been caused to the employee on account of non-furnishing of a copy of the enquiry report has to be considered in the facts of each case. It was observed that where the furnishing of the enquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the employee concerned to resume his duties and to get all consequential benefits. 20. It was also observed in _B. Karunakar case_[1] that in the event the enquiry officer’s report had not 11 W.A.No.1635 of 2012 been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of nonsupply of the report. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the enquiry report had not been supplied to the employee. 21. This is, in fact, a case where the order of punishment had been passed against Respondent 1 on allegations of financial irregularity. Such an allegation would require serious consideration as to whether the services of an employee against whom such allegations have been raised should be retained in the service of the Bank. Since a bank acts in a fiduciary capacity in regard to people’s investments, the very legitimacy of the banking system depends on the complete integrity of its employees. As indicated hereinbefore, there is a live link between Respondent 1’s performance as an employee of the Samity, which was affiliated to the Bank, and if the Bank was of the view that his services could not be retained on account of his previous 12 W.A.No.1635 of 2012 misdemeanour, it is then that the second part of _B. Karunakar cas_ ~~_e_~~[1] becomes attracted and it becomes necessary for the court to examine whether any prejudice has been caused to the employee or not before punishment is awarded to him. 22. It is not as if the Bank with an ulterior motive or a hidden agenda dismissed Respondent 1 from service, in fact, he was selected and appointed in the appellant Bank on account of his merit and performance at the time of interview. It cannot be said that the Bank harboured any ill feeling towards Respondent 1 which ultimately resulted in the order of dismissal passed on 8-5-2010. We, therefore, repeat that since no prejudice has been caused to Respondent 1 by the non-supply of the enquiry officer’s report, the said respondent had little scope to contend that the disciplinary proceedings had been vitiated on account of such non-supply.” As far as the case in hand is concerned, there is no material before us to indicate that any prejudice has been caused to the appellant on account of non-furnishing of a copy of the enquiry 13 W.A.No.1635 of 2012 report. The pleading of the appellant in the writ petition as to the prejudice reads thus : “Since the enquiry report was accepted before it was being furnished to the petitioner, serious prejudice has being caused to him as the enquiry officer solely relied on the interested and partisan witness came to the conclusion that the charges levelled against the petitioner was proved and disciplinary authority without inviting objection from the petitioner accepted the same also. If the petitioner would have given an opportunity to furnish objection against the enquiry report before it was being accepted especially in the circumstances where the petitioner was declared ex parte, he could have establish his innocent with cogent and reliable evidence.” What is pleaded by the petitioner is the prejudice caused to him on account of his non-participation in the enquiry and the same is insufficient to infer that prejudice has been caused to him on account of non-furnishing of the copy of the enquiry report. 14 W.A.No.1635 of 2012 In the said factual scenario, we do not find that the view taken by the learned single Judge is arbitrary or perverse in any manner, whatsoever. The writ appeal is, accordingly, dismissed. Sd/- ## **THOTTATHIL B.RADHAKRISHNAN, JUDGE.** Sd/- **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)